Getaround Employs a New Tactic to Defeat Employee Lawsuits

Gig economy businesses continue to face lawsuits demanding answers regarding whether or not workers should be classified as employees or independent contractors. Many gig economy companies rely on contract work for their business model. These companies have seen the most significant increase in misclassification lawsuits. As the number of misclassification lawsuits increased, so did the number of tactics businesses used to manage the employee lawsuits. These tactics have included PR campaigns, lobbyists, presenting legal arguments that they are not employers – just software programs, and more. The recent lawsuit filed against Getaround Inc. has resulted in a new tactic.

Getaround Inc. assists people hoping to rent their personal vehicles out online. But at the moment they may be best known in certain circles for employing an uncommon legal tactic to a common issue in today’s world. In a preemptive strike against a class action lawsuit, Getaround mailed out dozens of checks to former workers with paperwork attached asking them to sign away their legal right to sue. The interesting part is that a provision included in the documents stated the deposit of the enclosed check counted as an agreement to waive the right to sue – even without signing the included contract. Almost everyone who received the paperwork deposited the check.

The tactic is not unheard of, but it seems to be particularly effective in the gig economy. This may be due, in part, to the fact that industry workers lack financial stability. Attorneys asked to respond to the topic have described it as “insidious” since most former workers can’t afford to seek legal counsel for advice on depositing the check or holding out for a larger payout from an eventual lawsuit. Low wage workers are particularly vulnerable to this type of legal maneuvering.

The legal strategy in Getaround’s case highlights how creative gig companies are willing to be to avoid scrutiny of their worker classification methods. Many gig companies of this nature are not profitable, and reclassifying workers and providing employment benefits would mean even less profitability for the company. Many gig companies throughout California are still in a flat spin following California Supreme Court’s sweeping ruling last year limiting the scope of work they can classify as “contract” labor.

Settling worker claims using the “Pick Up Stix” tactic (as it is often referred to) is unusual in the gig economy, but this may be largely due to the fact that most gig economy companies require workers to sign class-action waivers as part of their arbitration agreements.

Are you misclassified on the job? If you have questions about what it means to be classified as an independent contractor versus an employee, don’t hesitate to get in touch with an experienced employment law attorney at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Our convenient locations in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago make it easy for us to be your advocate and seek the justice and compensation you deserve.

Abrishamian Requests Class Certification in Employment Law Suit Against TotalMed

On June 28th, 2019, Natalie Abrishamian filed a first-amended class action complaint against TotalMed Staffing, Inc. alleging numerous California labor law violations. The lawsuit was filed in the Superior Court of Los Angeles. The allegations included in the complaint were: failure to pay for all hours worked, failure to pay minimum wage, failure to authorize or permit meal breaks, failure to furnish accurate wage statements, waiting time penalties, and unfair business practices.

Abrishamian, a nurse employed through TotalMed Staffing, a Wisconsin employment staffing agency authorized to do business in California, was assigned to work Kaiser Permanente Panorama City inside California as a non-exempt, hourly wage traveling nurse. The 13-week assignment began on November 5th, 2018, and ended on February 2nd, 2019. Abrishamian was assigned three 12-hour shifts each week. On approximately December 13th, 2018, the plaintiff's employment was terminated. The plaintiff was out of work two months before the agreed-upon end date of her employment.

Issues About the Case:

1.        Defendant Did Not Take "Per Diem" Payments into Account When Calculating Overtime Rates

2.        Defendant Did Not Provide Payment for Mandatory Training and Orientation Specific to the Job

3.        Defendant Did Not Provide or Authorize Employees to Take Mandatory Meal Breaks and Rest Breaks

4.        Defendant Did Not Provide Employees with Accurate Wage Statements as Required

5.        Defendant Engaged in Unfair Business Practices

The class action will apply to current and former employees of TotalMed Staffing, Inc. who were employed during the class time period (anywhere from 4 years before the original filing through the date of the hearing). Plaintiffs' legal counsel has filed a demand for jury trial. Abrishamian seeks class-action certification from the court on behalf of each of the following classes included in the complaint: Per Diem Class, Unpaid Time Class, Meal Break Class, and the Rest Break Class.

 If you have questions about California labor law violations or if you are not receiving overtime pay, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Call or come by one of the Blumenthal Nordrehaug Bhowmik De Blouw LLP locations nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Is Starbucks Misgendering Trans Woman a Violation of Labor Law?

Starbucks recently claimed that misgendering or calling an employee by the wrong pronoun is not harassment, which is in direct contradiction to their employee guidelines. A former Starbucks employee, Maddie Wade, filed a complaint at the Fresno Superior Court in California suing the company for harassment and discrimination.

Wade, a former barista at a Starbucks in Fresno, alleges that when she began her transition, her manager at the time reduced her work hours and refused to call her by preferred pronouns. She also claims that her former Starbucks manager began posting transphobic material online through social media outlets. Wade claims that she was bullied and targeted by her manager at the Fresno Starbucks daily after she came out as transgender.

Allegedly, the mistreatment by her boss, Dustin Guthrie, escalated to unbearable levels and Wage had to transfer to a different Starbucks location. The harassment continued at the next Starbucks location. Wade claims her manager at the new site encouraged her to take the matter to the District Manager, and she did, but the situation was not resolved. After nine years of employment, Wade eventually left her position at Starbucks at the advice of her therapist due to the mental stress and “intolerable conditions” she was forced to endure.

Wade seeks general damages, special damages, punitive damages, and attorneys fees from her former employer. She states that the loss of health insurance prevented her from receiving the treatment and procedures she needs to complete her transition. Wade also claims that Starbuck’s value marketing group for its LGBTQ employees on the Facebook page, Starbucks Partners – Pride Alliance Network, refuses to allow her to post on its wall.

It is ironic that as we enter Pride Month, Starbucks seems to be making moves counter to its public record highlighting LGBTQ acceptance. The company is reasonably well known for its LGBTQ acceptance: scoring 100 out of 100 on Human Rights Campaign’s 2018 Corporate Equality Index, releasing annual LGBTQ-focused products, rolling out trans-inclusive health care included in their benefits package, etc. Attorneys representing the massive coffee provider are filing a motion for summary judgment and arguing that there is not enough evidence to show that Guthrie was calling Wade by incorrect pronouns on purpose. Without proof of intent, the Defendant contends that the behavior in itself cannot constitute discrimination under the California Fair Employment and Housing Act.

If you have questions about filing a discrimination lawsuit or if you experienced discrimination in the workplace, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Mattel Faces Age Discrimination Lawsuit

A former Mattel employee sued Mattel for age discrimination. 71-year old Benny Binshtock filed the age discrimination lawsuit against Mattel in Los Angeles Superior Court listing several allegations: wrongful termination, age-based harassment, age-based discrimination, retaliation in the workplace, intentional infliction of emotional distress, defamation, fraud, and concealment. Binshtock claims he was falsely accused of unnecessarily calling women over to his workspace as a justification to fire him, but that the real reason was his age. The age discrimination lawsuit seeks unspecified damages.

Binshtock firmly believes that his age was a contributing factor in the decision of management to terminate his employment and that the company intentionally sought to bring younger employees into the plaintiff’s position in the workplace. Binshtock’s time with Mattel began with his hiring in 1968. He was initially hired as an apprentice model maker and later received a promotion to supervisor. According to the complaint, the plaintiff’s department full of model makers like himself had not seen new hires in a significant number of years. Binshtock’s lengthy term of employment lent his complaint authority when he noted that the people in his department ranged in age from 40 to 65 years and that Mattel had employed them for many years.

In March 2018, Mattel employees saw the beginning of a round of layoffs. Binshtock claimed it was evident that defendants had clear intentions to terminate older employees. Within a month of the initial layoffs, Binshtock was called in for a meeting with Human Resources. In this meeting, he was advised that they had received a complaint against him of sexual harassment in the workplace. The “complaint” indicated that Binshtock always called female co-workers over to this office for his amusement rather than for work-related necessities. The plaintiff claims the sexual harassment complaint was completely baseless – fabricated to defame him of the reputation he spent years building on the job at Mattel.

In the same meeting with Human Resources, the HR rep changed her accusation against Binshtock from sexual harassment to “making women uncomfortable.” The plaintiff was called into another meeting in May 2018, where HR told him that an investigation had been conducted into the matter and had resulted in the decision to terminate his employment. Within the month, Binshtock, 70 years old at the time, was fired.

If you have been fired and need to discuss filing a wrongful termination lawsuit, please don’t hesitate. Get in touch with an experienced employment law attorney at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Our convenient locations in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago make it easy for us to be your advocate and seek the justice and compensation you deserve.

“2 Investigates” Features Wrongful Termination Lawsuit: Plaintiff Wins

In South San Francisco, California KTVU 2 Investigates completed a report on the situation of Ivania Centeno, a 13-year employee of Bon Appetit Café inside Genetech. Centeno alleges wrongful termination due to a family-leave discrepancy. The story helped spark an award for the plaintiff totaling hundreds of thousands of dollars.

Centeno claimed she was released from her position in 2017 because she took time off to care for her mother-in-law who was dying; doing so was allegedly against the company's policy. Centeno attempted to fight for justice in her case for a year before 2 Investigates completed a report and aired it in a February segment that highlighted the situation and the more significant issue at hand: a legal loophole in California that prevents employees from accessing protection provided under current family-leave laws when the case applies to in-laws.

According to California paid leave law the care of in-laws is covered, but under the California Family Rights Act, care of in-laws is not covered. As the two laws contradict each other, and it is not clear which law takes precedent, legislative changes are necessary for any long-term resolution.

In the current case of Centeno and Bon Appetit Café, Centeno claims her mother-in-law because seriously ill and Bon Appetit granted Centeno permission to fly to Nicaragua to provide the needed care. Centeno traveled to Nicaragua and provided her mother-in-law with the necessary care until she passed. After her mother-in-law died, Centeno returned to the states to go back to her job. When she arrived, Bon Appetit fired her, insisting that she missed too many days of work and that caring for her mother-in-law was not a protected activity under the family leave policy.  

Management at the company claims that computer software made the decision to terminate Centeno. The trip to care for her mother-in-law, as well as previous absences due to a work-related injury, were input into the software, which then generated the conclusion to terminate Centeno's employment.  

In April 2019, the case was resolved with Centeno receiving an undisclosed amount of back pay, unemployment benefits, and an award of $211,795 in attorney fees and an additional $25,603 in court costs.

If you have questions about wrongful termination or what constitutes wrongful termination, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the Blumenthal Nordrehaug Bhowmik De Blouw LLP location nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

$1.3 Million Settlement to Settle Glasswerks L.A. Unpaid Wages Lawsuit

California employees claimed another victory in a recent unpaid wages lawsuit, Fajardo v. Glasswerks L.A. The commercial glass manufacturer agreed to pay $1.3 million to resolve the class action filed on behalf of workers who claim the company failed to pay overtime and provide meal and rest breaks.

The claims apply to employees working for Glasswerks L.A. between 2012 and 2018 and affects more than 1,000 current and former employees. Each will end up receiving approximately $800, but some will see as much as $2,400 as a result of the settlement. Plaintiffs in the case claim the company shorted them on overtime and failed to provide meal and rest breaks and required by California Labor Law. 

Parties settled the case through private mediation with few details offered to the public. In spite of the lack of information, the settlement supports the continued efforts of the California courts to protect the rights of employees and their legally protected pay.

According to California Labor Law, nonexempt employees are entitled to overtime when they work over eight hours in one day or 40 hours in one week. Nonexempt workers are entitled to a 30-minute uninterrupted, duty-free meal break when they complete more than 5 hours in a shift (on one workday) as well as a 10-minute uninterrupted, duty-free rest break for every 4 hours worked. While the rules seem straightforward, there are often complications. Most confusion regarding these specific labor laws come from the determining who is covered by the protections of the law and which hours count. For instance, independent contractors (rather than employees of the company) do not receive wage and hour law protections. Managerial employees are also exempt.

Another common issue for California wage and hour law involves determining which hours should be counted when determining how many hours an employee has worked in one workday or how many hours they have worked in one workweek. (According to the law, more than 8 hours in one day or more than 40 hours in one workweek require employees to provide overtime compensation). According to recent California court decisions, employers should include small amounts of off-the-clock work time when counting employee hours towards overtime totals. On-call time should also be included even when the employee is not required to be present on the job site. For instance, employees who are required to be on-call at night must be paid for their time even if the employee is asleep during their time on call. Employees asked to take care of simple tasks while on lunch break must have their time count toward wage and overtime calculations and payment.

If you have questions about why you are not receiving overtime pay you are due, or if you have experienced other California Labor Law violations in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. We have the experience you need on your side to protect your wage and hour rights and help you gain the compensation you deserve.

$2 Million Settlement to End Terranea Resort Workers’ Wage Lawsuit

Court documents filed on April 30th, 2019 outlined a settlement of $2.15 million paid by Terranea Resort to resolve claims made in a significant wage and hour class action lawsuit. This settlement follows another class action lawsuit the Lowe Enterprises-owned hotel settled in 2013. The previous lawsuit resulted in a $1.125 million settlement.

The recent lawsuit was filed on behalf of hundreds of employees, both current and former, all eligible to receive compensation.  

Allegations Included in the Complaint: Various Forms of Wage Theft

•    Off-the-Clock-Work

•    Missed Rest Breaks

•    Missed Meal Periods

•    Failure to Reimburse Employees for Basic Tools Needed on the Job

•    Falsified Record Keeping to Avoid Paying Meal Break Penalties

The lawsuit also claimed that the resort failed to provide employees with payment for the time they were required to spend shuttling back and forth between the resort and off-site parking lots per company bus. According to allegations made in the complaint, it added an hour or more to employees’ travel each day. Plaintiffs also claim that workers were required to arrive early for shifts to change into their uniforms before clocking in for their shift (constituting off-the-clock-work).

Expenses that the resort failed to reimburse included the cost of essential kitchen items cooks used in the luxury resort kitchen. For instance, cooks claim they purchased their own knives, graters, etc. because the resort did not provide even the most necessary tools.

If you have questions about wage and hour law or if you are not paid the compensation you are due, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.